Amicus Briefs ~ 2009

Al-Marri v. Spagone , U.S. Sup. Ct., No. 08-368, opinion below Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008). Amicus curiae brief of the National Association of Criminal Defense Lawyers in Support of Petitioner, filed 1/28/09. Argument: The government’s purported authority to indefinitely detain a lawful U.S. resident as an “enemy combatant” violates the Sixth Amendment and disrupts the criminal justice system and the courts. The Constitution requires full Sixth Amendment due process for all U.S. residents, especially in cases involving high security detainees and serious threats to national security. Authors: Julia E. McEvoy, Christian G. Vergonis, and Katherine E. Stern, Jones Day.

Berghuis v. Smith, U.S. Sup. Ct., No. 08-1402, case below, 543 F.3d 326 (6th Cir. 2008), brief filed 12/28/09, argument 01/20/10. Sixth Amendment---Representative Juries---Stare Decisis. Amici curiae brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and The National Jury Project in support of Respondent. Argument: The Sixth Amendment right to an impartial jury requires that the jury be representative of the community—that it “must be drawn from a fair cross-section of the community….” as iterated in the Supreme Court’s rulings in Taylor v. Louisiana and Duren v. Missouri. Author: Clifford M. Sloan, Washington, DC.

Bloate v. United States, U.S. Sup. Ct., No. 08-728, case below, 534 F.3d 893 (8th Cir. 2008), brief filed6/25/09. Speedy Trial Act---Pre-Trial Motions. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: The Speedy Trial Act advances the public’s interest in an efficient and fair criminal justice system, as Congress intended, and the Court should reject any expansion of the Act’s automatic exclusions that threatens achievement of the important purposes and significant benefits of the Act. Author: Ketanji Brown Jackson, Morrison & Foerster LLP, Washington, DC.

Briscoe v. Virginia, U.S. Sup. Ct., No. 07-11191, case below, 657 S.E.2d 113 (Va. 2008), brief filed 9/09. Lab Reports---Hearsay---Confrontation Clause. Amici curiae brief of the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: Virginia’s statutory subpoena alternative is not justified by a “sky-will-otherwise-fall” rationale requiring forensic lab technicians and other prosecution experts to testify in open court, as the Supreme Court specified last term in Melendez-Diaz v. Massachusetts,129 S.Ct. 2527 (2009). The requirement that the defendant call a prosecution witness, rather than the state, is no substitute for the Sixth Amendment right to confrontation, because the Confrontation Clause procedure promotes justice in the manner in which it allocates burdens to the prosecution and opportunities to the defense. In addition, the statutory subpoena alternative is an entirely different and less effective means of adversarial testing that diminishes accuracy and reliability in the criminal justice system. Author: Timothy P. O’Toole, Miller & Chevalier, Washington, DC.

Carr v. United States, U.S. Sup. Ct., No. 08-1301, decision below 551 F.3d 578 (7th Cir. 2008), brief filed 12/10/09, argument 2/24/10. Adam Walsh Act/SORNA—Sex Offenders—Ex Post Facto. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The federal Sex Offender Registration and Notification Act (SORNA) imposes criminal penalties of up to ten years imprisonment on anyone who “is required to register … travels in interstate or foreign commerce … and knowingly fails to register or update [sex offender] registration.” In 2007, a federal regulation made the registration requirements retroactive. The defendant was released from prison in Alabama in 2004 and registered as a sex offender; a few months later he moved to Indiana, but failed to register as a sex offender in that state. The brief argues that the retroactive application of SORNA’s criminal provisions raises constitutional concerns under the Ex Post Facto Clause and the Commerce Clause of the U.S. Constitution and that construing SORNA to avoid those concerns would not undermine the law’s objective of reducing recidivism of registered sex offenders. Authors: Jonathan L. Marcus, et al., Covington & Burling, Washington, DC.

Carachuri-Rosendo v. Holder, U.S. Sup. Ct., No. 09-60, decision below 570 F.3d 263 (5th Cir. 2009), brief filed 08/17/09. Immigration and Deportation – “Aggravated Felony” – Misdemeanor Drug Possession. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, the National Association of Federal Defenders, the Immigrant Defense Project, the Immigrant Legal Resource Center, the National Immigrant Justice Center, and the National Immigration Project of the National Lawyers Guild in support of Petitioner. Argument: The perfunctory processing of low-level (misdemeanor) drug charges is rooted in the understanding that ordinarily defendants face less serious direct and collateral consequences. Essentially duped into believing that these charges were resolved with a quick plea, many non-citizens, including permanent legal residents, subsequently find themselves subject to deportation, despite the fact that they were charged with the most minor drug possession offenses that exist within state penal codes. The issue before the Court is whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of a deportable “aggravated felony” where there was no charge or finding of a prior conviction in his prosecution for possession. Authors: Jim Walden and Richard A. Bierschbach, Gibson, Dunn & Crutcher LLP, New York. (Merits Brief: Carachuri-Rosendo v. Holder)

Conrad M. Black v. United States, U.S. Sup. Ct., No. 08-876, case below, 530 F.3d 596 (7th Cir. 2008), brief filed 8/6/09. Due Process—Federalism---Honest-Services Fraud---Forfeiture and Preservation of Objections. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of petitioners. Argument: Section 1346 violates due process requirements by (i) not providing fair warning, at the time of the offense, of what conduct is prohibited, and (ii) failing to be clear and specific enough to inform the public of precisely what conduct is prohibited and cabining law enforcement’s discretion within reasonable limits. In addition, interpretation of Section 1346 to impose a federal-law duty to provide “honest services” irrespective of state law would invite federal courts to create a federal common law of honest dealing, an approach which has been anathema for two centuries. The Seventh Circuit’s forfeiture rule would unfairly compel defendants either to accept prejudicial interrogatories or to forfeit objections to prejudicial instructional error. Authors: Jonathan L. Marcus, Roger A. Ford, James McCall Smith, Convington & Burling LLP, Washington, DC.

Echols v. Arkansas, Supreme Court of Arkansas, CR No. 08-1493, on appeal from Craighead County Circuit Court on Change of Venue from Crittenden County Circuit Court (unreported), Circuit Court No. CR 93-450a (Hon. David Burnett, Judge), brief filed 9/17/09. Capital Case---Juveniles---Mentally Impaired---False Confessions. Amicus curiae brief of the Center on Wrongful Convictions of Youth and the National Association of Criminal Defense Lawyers in support of appellant. Argument: Due to the potent nature of confession evidence, the Misskelley confession strongly influenced the jury’s verdict, even though it was not admitted at trial. Standard police interrogation tactics have been shown to induce false confessions, particularly in juveniles and the mentally impaired. Even while the Misskelley confession strongly influenced the jury’s decision to convict, it bears all the hallmarks of a false confession. Authors: Laura H. Niridir and Steven A. Drizin, Center on Wrongful Convictions of Youth at Northwestern University School of Law; Barbara Bergman, Amicus Committee Co-Chair, National Association of Criminal Defense Lawyers.

Florida v. Powell, U.S. Sup. Ct., No. 08-1175, case below, 998 So.2d 531 (Fla. 2008), argument 12/07/2009. Miranda warning—Right to counsel during questioning. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders. Argument: The Tampa, Fla., police department’s imprecise Miranda­-type warning that advises “You have the right to talk to a lawyer before answering any of our questions” but does not explicitly advise of the right to have a lawyer present during questioning comport with Miranda v. Arizona? Brief argues that any form warning that any form warning that systematically omits mention of a core Fifth Amendment right does not pass constitutional muster. Authors: Linda T. Coverly, Winston & Strawn, Chicago, and Gene C. Schaerr and Geoffrey P. Eaton, Winston & Strawn, Washington, DC.

Kiyemba v. Obama, (Uighur Case), U.S. Sup. Ct., No. 08-1234, opinion below Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009); brief filed 12/11/09. Habeas corpus—Separation of Powers. Amicus curiae brief of the Association of the Bar of the City of New York, the Brennan Center for Justice at New York University School of Law, the Constitution Project, People for the American Way Foundation, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioners. Question Presented: Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, 553 U.S. __, 128 S. Ct. 2229 (2008), has no power to order the release of prisoners held by the Executive for seven years in the Guantánamo prison, where the Executive detention is indefinite and without authorization in law, and release in the continental United States is the only possible effective remedy. Argument: The court of appeals’ ruling undermines the “judicial Power” conferred by Article III of the Constitution and the role of an independent judiciary in our constitutional system of separated powers. Authors: Sidney S. Rosdeitcher, Association of the Bar of the City of New York; Alex Young K. Oh, Philip G. Barber, and David G. Clunie, Washington, DC; Elizabeth Goitein and Emily Berman, and Aziz Huq, Brennan Center for Justice; Sharon Bradford Franklin, Constitution Project; Margery F. Baker and Deborah Liu, People for the American Way Foundation; John W. Whitehead, Rutherford Institute; Malia N. Brink, National Association of Criminal Defense Lawyers.
DC Circuit brief below.

Maryland v. Shatzer, U.S. Sup. Ct., No. 08-680, case below 954 A.2d 1118 (Md. 2008), cert. granted 1/26/09, brief filed 6/5/09. Interrogation—Right to counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The Court should not create exceptions to the bright line rule of Arizona v. Edwards, 451 U.S. 477 (1981), let alone exceptions that would permit police from the same jurisdiction to reinterrogate a continuously imprisoned suspect about the very same offense as to which he had originally invoked his right to counsel. Authors: Daniel Meron, Lathan & Watkins LLP, Washington, D.C. and Colleen C. Smith, Lathan & Watkins LLP, San Diego, CA.

Nacchio v. United States, U.S. Sup. Ct., No. 08-1172, case below, 555 F.3d 1234 (10th Cir. 2009), brief filed 4/2209. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of granting the petition. In the case below, first argued in 2008 and reheard en banc by the 10th Circuit court of appeals, the defendant and amici argued that the trial court judge improperly excluded a defense expert witness who would have explained the former executive’s trading of Qwest stock to the jury. Authors: Andrew H. Schapiro and Scott A. Claffee, Mayer Brown LLP, Washington, D.C.
10th Circuit brief below.

Padilla v. Kentucky, U.S. Sup. Ct., No. 08-651, case below 253 S.W.3d 482 (Ky. 2008), cert. granted 2/23/09, brief filed 6/2/09. Ineffective Assistance of Counsel—Immigration—Collateral Consequences of Conviction. Amicus Curiae brief of the National Association of Criminal Defense Lawyers, et al. Argumentfont face="Arial">: The Court should hold that the criminal defense function includes advising the client of every important consequence of a plea, in this case deportation for a non-citizen U.S. resident of 40 years and veteran of the U.S. Army resulting from a plea of guilty for trafficking in marijuana - an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). Accordingly, where, as here, such advice by counsel was not provided, the guilty plea, and conviction based on that plea, should be set aside. Authors: Iris E. Bennett and Matthew Hersh, Jenner & Block LLP, Washington, D.C.

People v. Colon, New York Court of Appeals, No. 162, 163, case below 55 A.D.3d 444 (1st Dept. 2008) , filed 9/4/09. Brady—Exculpatory Information—Prosecutorial Conduct—Due Process. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers. Argument: The decision of the Appellate Division, First Department should be reversed. Due process requires prosecutors to disclose favorable information – not just evidence – in time for defense counsel to investigate and use it at trial. These opportunities are precluded when the prosecutor withholds the information. Requiring defendant to establish the information’s admissibility for the first time years after conviction is an often impossible task. When information emerges long after trial, courts should assume accuracy and that timely disclosure would have led to admissible or otherwise helpful evidence, and then apply the Vilardi materiality test. Authors: Marc Fernich and Maurice Sercarz of Sercarz & Riopelle LLP in New York, NY and Richard D. Willstatter, Vice Chair of NACDL’s Amicus Curiae Committee and Amicus Curiae Committee Chair for the New York State Association of Criminal Defense Lawyers of White Plains and New York, NY.

People v. Weaver, New York Court of Appeals, case below 52 A.D.3d 138 (3rd Dept. 2008). GPS Surveillance—Search and Seizure—Warrant Requirement--Associational Privacy. Joint amicus curiae brief (submitted with motion for leave to file on Feb. 2, 2009) of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the New York State Defenders Association, the Electronic Frontier Foundation, the American-Arab Anti-Discrimination Committee, the Sikh American Legal Defense and Education Fund, the Council on American-Islamic Relations, and the Union for Reform Judaism. Argument: The decision of the Appellate Division, Third Department should be reversed. To secure both First and Fourth Amendment rights, as well as liberty and privacy rights under New York State Constitution, law enforcement should be required to secure a warrant based on probable cause prior to secretly installing GPS transmitter on a person’s vehicle and undertaking such surveillance. Authors: Susan J. Walsh, Moskowitz, Book & Walsh, LLP, New York, NY; Norman L. Reimer, Exec. Dir., NACDL, Washington, DC; Ivan J. Dominguez, Asst. Dir. Public Affairs & Communications, NACDL, Washington, DC.

Pottawattamie Cty. v. McGhee, U.S. Sup. Ct., No. 08-1065, case below, 547 F.3d 922 (8th Cir. 2008), brief filed9/18/09. Prosecutorial Misconduct---Wrongful Conviction---Absolute Immunity---Qualified Immunity---Section 1983. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the CATO Institute, and the American Civil Liberties Union in support of respondents. Argument: As a matter of policy as well as precedent, absolute immunity should not be extended to shield from civil liability prosecutors who function side by side with police detectives during the investigation of a crime to frame a ‘suspect’ by fabricating ‘evidence’ and then give that ‘evidence’ its intended use by introducing it at a criminal trial. Petitioners do not enjoy qualified immunity for fabricating evidence during the investigative stage merely because they, instead of another prosecutor, presented that evidence at trial. Author: Joel B. Rudin, New York, New York.

Price v. Turner, S.C., No. 03-DR-37-472. brief filed 10/29/09. Right to Counsel—Indigents—Child support nonpayment proceedings. Amicus curiae brief of the ACLU Foundation, South Carolina National Office, the Brennan Center for Justice, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the South Carolina Association of Criminal Defense Lawyers in support of appellant Michael Turner. Argument: Because the Sixth Amendment requires that courts appoint counsel for indigent defendants where imprisonment is a possibility, South Carolina family court are required to appoint counsel to represent indigent defendants in family court child support nonpayment proceedings where imprisonment is a possibility. Authors: Stephen J. McConnell and Meghan Rohling Kelly, Dechert LLP, Philadelphia, PA.

Skilling v. United States, U.S. Sup. Ct., No. 08-1394, case below, 554 F.3d 529 (5th Cir. 2009), brief filed 12/09. Honest-Services Fraud---Due Process--Vagueness---Pretrial Publicity--Voir Dire. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner and urging reversal. Argument: The theft-of-honest-services statute¸18 U.S.C. §1346, is void for vagueness; also, the presumption of prejudice that arises from intense community hostility and pervasive adverse publicity cannot be rebutted through voir dire. Author/font>: John D. Cline, Jones Day, San Francisco, CA. Here is a link to NACDL’s amicus brief in support of the Skilling petition for writ of certiorari.

United States v. Comstock, U.S. Sup. Ct., No. 08-1224, opinion below, 551 F.3d 274 (4th Cir. 2009), argument 01/12/2010. Federal civil commitment statute (Adam Walsh Act)—Due Process—Vagueness. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders. Questions presented: Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial. Brief argues that evidentiary standards and lack of procedural safeguards render the civil commitment provisions of the Adam Walsh Act, 18 U.S.C. §4248, violate due process and also that the statute is void for vagueness. Authors: Jeffrey T. Green, et al., Sidley Austin, Washington, D.C.

United States v. Diaz, U.S. Court of Appeals for the Armed Forces (C.A.A.F.), USCA Dkt. No. 09-0535/NA, Crim. App. No. 200700970; filed 10/29/09. Sixth Amendment Right to Present a Defense – Fifth Amendment Right to a Fair Trial – Mens Rea – Classified Information. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant Lt. Cmdr. Matthew M. Diaz. Argument: Lt. Cmdr. Diaz, a Navy JAG convicted of improper disclosure of classified information did not receive a fair trial because he was precluded from introducing any evidence of his “intent,” “state of mind,” “motive,” “ethical obligations” as an attorney, and “ethical obligations” as a commissioned officer in the Navy. Appellant was precluded from introducing evidence that the information (a list of detainees being held at Guantanamo Bay, Cuba) was not marked as classified; that he did not know or believe his actions to be illegal; and that his actions were in good faith and consistent with his duties and obligations a lawyer. Excluding this evidence violated his right to a fair trial and right to present a defense. Furthermore, the Military Judge failed to determine whether the “classified information in question was lawfully classified." Author: Donald G. Rehkopf, Jr., Brenna, Brenna & Boyce, PLLC, Rochester, NY.

United States v. Johnson, 9th Cir., No. 08-30094, panel decision 581 F.3d 994, brief filed 10/19/09. Federal sentencing guidelines—Acceptance of responsibility. Amicus curiae brief of the Ninth Circuit Federal Public and Community Defenders and the National Association of Criminal Defense Lawyers in support of defendant-appellant’s petition for rehearing en banc. Argument: The panel majority erroneously upheld denial of the third level for acceptance of responsibility (Guidelines §3E1.1) where the defendant entered a conditional guilty plea in order to appeal his Fourth Amendment claim. Author: Stephen Sady, Federal Public Defender Office, Portland, OR.

United States v. Kuehne, 11th Circuit, No. 09-10199, brief filed 6/15/09. Opinion below 2008 WL 5381394 (S.D. Fla. Dec.22, 2008). Money laundering—Conspiracy. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Defendants-Appellants in Support of Affirmance of Dismissal of money laundering conspiracy count. Argument: In that Congress provided an exception to the money laundering statutes, 18 U.S.C. §1956-1957, for bona fide attorneys’ fees – transactions “necessary to preserve” an individual’s Sixth Amendment right to representation—the government’s parsimonious view of what is “necessary” to a defense threatens to hamstring all complex criminal defense efforts by interjecting the threat of prosecution into every monetary transaction over $10,000 in which counsel enters. The threat of possible prosecution of retained counsel in virtually any case may well dissuade attorneys from taking on clients in certain types of cases, thus depriving some defendants of their right to counsel of choice. Authors: Howard M. Shapiro, Jonathan E. Neuchterlein, et al., WilmerHale LLP, Washington, DC, and David Oscar Markus, Miami, FL. Brief in Support of Defendant's Motion to Dismiss before the U.S. District Court for the Southern District of Florida.

United States v. SDI Future Health Inc., 9th Cir., No. 07-10261, panel decision, 553 F.3d 1246 (9th Cir. 2009), brief filed Feb. 27, 2009. Search and seizure—Business premises—Shareholder’s standing to challenge search. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellees’ petition for rehearing en banc. The district court granted a motion to suppress filed by the defendant SDI, a closely-held corporation, and its two major shareholders, and the government appealed. The court of appeals affirmed in part and reversed in part, and the defendants filed a petition for rehearing en banc. Argument: The panel incorrectly held that an owner of a closely-held corporation (other than a “small, family-run business”) lacks standing to challenge a search pursuant to a defective warrant of the corporate premises beyond his personal office; the interests of a closely-held corporation may coincide with the interests of the owner himself; and the owners of a closely-held corporation may have Fourth Amendment rights in the company’s entire premises. Authors: Kevin P. Martin, Goodwin Proctor LLP, Boston, and Sheryl McCloud, Seattle.

United States v. Turk, U.S. District Court (S.D.N.Y.), No. 07-CR-1062 (NRB) , filed 10/19/09. U.S. Sentencing Guidelines---Loss Analysis---Fraud. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the New York Council of Defense Lawyers. Argument: Defendants should be sentenced based only upon those losses that their conduct proximately caused. The government’s efforts to limit proximate cause analysis to securities fraud cases are unconvincing and unsupported; application of proximate cause principles will avoid unjust results that conflict with the purposes of the guidelines. Authors: Lawrence S. Bader, Robert M. Radick, and Claudio Ochoa of Morvillo, Abramowitz, Grand, Iason, Anello, and Bohrer P.C. in New York, NY; Richard D. Willstatter, Vice Chair of NACDL’s Amicus Curiae Committee and Amicus Curiae Committee Chair for the New York State Association of Criminal Defense Lawyers of White Plains and New York, NY; and Barry A. Bohrer, President of the New York Council of Defense Lawyers.

Weyhrauch v. United States, U.S. Sup. Ct., No. 08-1196, case below, 548 F.3d 1247 (9th Cir. 2008), brief filed 9/21/09. Due Process---Honest-Services Fraud---Section 1346---Federalism. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: The federal “honest services” fraud statute, 18 U.S.C. 1346, raises critical constitutional concerns in that it (i) is unconstitutionally vague and fails to provide the degree of fair warning of its scope or meaning, as required by the Due Process Clause, and (ii) invades a regulatory area constitutionally committed to the states under the doctrine of federalism. Authors: Abbe David Lowell, Paul M. Thompson, and Jeffrey W. Mikoni, McDermott Will & Emery LLP, Washington, DC.